Im-Politic: Why Senate Dems Should be Ashamed…& Kavanaugh Should Go

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Brett Kavanaugh, Christine Blasey Ford, Deborah Ramirez, Democrats, FBI, Im-Politic, Jeff Flake, Julie Swetnick, Mark Judge, Republicans, Senate Judiciary Committee, sexual assault, Supreme Court, Trump

Thanks to Jeff Flake, I get to write about the Kavanaugh firestorm again well before I wanted to. On Friday, for readers leading hermitic lives, the retiring Arizona Senator and Republican member of the Judiciary Committee announced his conditional decision to support the nomination of Brett Kavanaugh to the Supreme Court. The result was Committee approval, but only pending the findings of a week-long FBI probe of one and possibly two of the sexual misconduct charges leveled against the federal judge.

This compromise leaves me more convinced than ever that, as I first posted on September 19, the only solution to the Kavanaugh uproar consistent with American democratic values and procedures is a political solution. In other words, because it will not be possible to determine Kavanaugh’s guilt or innocence with a degree of confidence that would satisfy any (remaining!) open-minded observers, a decision needs to be made by Senators with the information they already have at hand – and thereby forcing them to face whatever political consequences result.

At the same time, the weight of the evidence now tells me that, for the good of the country, the least worst of a series of remaining alternatives that are absolutely terrible is that someone other than Kavanaugh fill the Court seat that’s currently open.

Regarding the FBI probe, I have no objection to the kind of short investigation by the Bureau of the Kavanaugh allegations successfully demanded by Senate Democrats. But the the chances of conclusively establishing the decisive facts seem slim at best. For example, it’s not possible to demonstrate Kavanaugh’s innocence versus Christine Blasey Ford’s charges without hard evidence (e.g., a photograph, some contemporaneous restaurant or store receipt) showing Kavanaugh’s location the night of the assault because Ford does not remember which night it was. That’s not a criticism of her; it’s simply a fact that unavoidably complicates such matters.

In principle, Mark Judge, the Kavanaugh friend that Ford claims was the third person in the room during the assault, could change his story and attest to her claims about the judge’s behavior. But simply since such an about-face would expose Judge to legal jeopardy, how plausible is that scenario? Similar problems could face the other party attendees identified by Ford if they changed their varying claims of ignorance of the alleged incident. And even in the absence of prosecution, how credible would such actions leave them in the court of public opinion?

There are two other big potential problems with an FBI investigation – long or short. First, it wouldn’t take place in a vacuum. Interviewees of both Kavanaugh and Ford would have plenty of context – and therefore plenty of incentive to offer claims of all kinds expressly intended to support or discredit either one. And although lying to the FBI is often a criminal act, it doesn’t take an especially active imagination – especially in the current, politically charged atmosphere – to think of many statements that would be impossible to prove or disprove. Nor is it remotely difficult to believe that all manner of Kavanaugh accusers would suddenly emerge, especially since the Bureau accepts anonymous information.

Second, how out of character would it be for Kavanaugh opponents to complain, despite agreeing with the time frame, that it was inadequate after all? That all possible and even likely leads hadn’t been run down? That new witnesses need to appear in public before the full Committee after all? (P.S. – even though Judge has given a sworn statement, since he is the only eyewitness identified by Ford other than Kavanaugh, and as a result is in a class by himself when it comes to her accusations, I believe he should have been subpoenaed last week).

Many Kavanaugh opponents contend that the charges leveled by Deborah Ramirez and Julie Swetnick merit an investigation, too. The former’s lawyer has confirmed that the FBI has contacted his client about her allegation that  Kavanaugh shoved his genitals into her face at an alcohol-drenched gathering both attended as Yale University freshmen. I explained on Wednesday why I regard Ramirez’ case as significantly weaker than Ford’s. 

As for Swetnick, even disregarding new evidence of serious challenges her own credibility would face (see, notably, here and here), the more I think about her story, the less plausible it seems – even though her statement is sworn as well, and exposes her to prosecution if challenged. Principally, it appears profoundly improbable that the kind of regular mass rape activity she depicts could have been kept so secret for so long, especially among the families of affluent DC-area private school students who, as I know from first-hand observation, genuinely do comprise a series of very close-knit communities. Therefore, it’s at least as improbable that Kavanaugh’s involvement would have escaped the FBI’s notice during the background checks it’s conducted in connection with his several government appointments. (By contrast, it is entirely plausible that the type of incident Ford has described could be kept secret. After all, she’s not claiming any repeats, and the number of attendees at that single gathering was much smaller.) 

In fact, partly for that reason, Ford’s case is looking stronger to me all the time. It’s clear to me, anyway, that the Democrats (including her lawyers) are shamefully exploiting her situation. It’s equally clear that they’re playing for time, in hopes that they’ll win back control of the Senate and thus gain the ability to block any Trump judicial nominees of any kind. In particular, it’s clear that the Democrats only decided to leak Ford’s name to the press – and thereby enhance the credibility of her story – only after they became convinced that Kavanaugh was headed for Committee and then Senate approval.

But, as I explained last Saturday, none of those considerations invalidate her claims. Nor, in this vein, can I identify any realistic motive for her to be lying. Even if she’s a fanatic Democrat or progressive, her actions have unmistakably subjected her and her family to the ugliest and most fearful kinds of hounding and harassment – harassment that nowadays could easily turn violent. It’s admittedly possible that she was happy to help an anti-Kavanaugh conspiracy, and “take one for the cause,” by fabricating her tale. ” But I’m glad I don’t have to make that argument.

Moreover, unlike Ramirez, Ford can point to a sworn statement from her husband maintaining that she mentioned Kavanaugh as her assailant back in 2012. One other statement, from a friend, says that this past June, nine days before the announcement of Kavanaugh’s nomination, in response to the friend’s question, she specified Kavanaugh as the federal judge she had initially told him in 2016 had assaulted her in high school. A third friend has stated (also under oath) that Ford told her in 2013 of a high school assault on her by a federal judge, though the judge was not named. (See here for a summary of these statements.) 

If strong evidence refuting or strongly challenging any of this comes out in the next week, or whenever, then clearly I’ll need to rethink my conclusion.

Nonetheless, the actions of many Democrats in this Kavanaugh stink hardly persuade me that justice will have been done if his nomination is defeated – much less that the good of the nation will have been served. Quite the contrary. Their readiness to label him a sexual criminal based simply on Ford’s then-anonymous accusation shows that the bar for such charges has now sunk appallingly low, and that the chances of their success have now become appallingly high. (That’s why I completely sympathize with South Carolina Republican Senator and Judiciary Committee member Lindsey Graham’s diatribe against his Democratic colleagues.)

Consequently, there is reason for concern that the kinds of individuals that everyone should want in public service will refuse to take the risk of being Kavanaugh-ed. In other words the party has paved the way for successfully weaponizing slander in connection with sexual misconduct. At least as bad, in the process, for the reasons stated above, participating in FBI background checks might be successfully weaponized, too. The ease of libeling the subject has become too great, and the odds of paying the price too meager.

Yesterday, in an effort to balance some of the various competing considerations, I suggested on Twitter that, following the FBI probe (and assuming its failure to shed much more light on the allegations), that the Judiciary Committee and full Senate proceed promptly to votes. Then, and assuming that Kavanaugh won, that he withdraw his name from consideration. This outcome, I hope, might prevent the Supreme Court’s legitimacy from becoming fatally weakened – both because a critical mass of the public will never trust him no matter what; because he’s sadly tarnished his own credibility with too many sworn statements that raise too many consistency questions and might even be perjurious; and because his latest testimony has exposed too much evidence of excessive partisanship.

Yet a Kavanaugh withdrawal will still enable President Trump to exercise his entirely valid Constitutional right to nominate another conservative who shares his judicial philosophy. Indeed, this act of selflessness might bolster a follow-on nominee’s chances of success by shielding him or her in the public eye from especially scurrilous tactics, and possibly curbing some of the Democrats’ mud-slinging instincts. It might also go far toward repairing Kavanaugh’s image.      

But whether this idea is picked up or not, the American political system designates Senators the ultimate arbiters of nominations like Kavanaugh’s. At this point, I see no acceptable way forward other than permitting them to do their jobs – and then trying to figure out how to replace a Supreme Court nomination process that has become irreparably broken.   

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Im-Politic: Judging Kavanaugh’s Latest Accusers

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alcohol, Brett Kavanaugh, Christine Blasey Ford, CNN, Deborah Ramirez, Democrats, Im-Politic, Jane Mayer, Mark Judge, Michael Avenatti, prep schools, Ronan Farrow, sexual assault, Supreme Court, The New York Times, The New Yorker, U.S. Senate, Yale University

Once more, I started a day determined to blog about something other than the Kavanaugh Supreme Court nomination mess, and once more, I realize that there’s no point (until the hard economic data flow resumes – which will be soon – unless some globalist and/or free trade extremist writes something beyond even the pale of their increasingly loopy standard; or until something equally nutty happens with the Rod Rosenstein Justice Department mess).

Here, therefore, is a scorecard approach to where we stand in terms of Kavanaugh’s accusers, their credibility, and the related subject of his credibility – and why some points matter to varying degrees, and some points don’t matter at all, or hardly at all.

The first group of developments is pretty easily disposed of, and concern attorney Michael Avenatti’s claim that a client of his is a third Kavanaugh accuser (in addition to Christine Blasey Ford and Deborah Ramirez) who is “100% credible.”

That she may be. But having initially promised that she would come forward by tomorrow night, the outspoken lawyer, who initially burst into the spotlight by representing porn star Stormy Daniels in her lawsuit against President Trump, may be backtracking. Yesterday morning, he tweeted that the accuser would reveal her identity and her allegations “only when SHE is ready and we have adequate security measures in place.” He added, “it is her choice and hers alone as to when to surface bc it is her life. We expect it within the next 36 hrs.” So keep clock-watching.

At the same time, it looks as if the accuser is not a victim. In a email to the Senate Judiciary Committee (which is considering Kavanaugh’s suitability for a Supreme Court seat), Avenatti certainly never described her as such. Instead, he insisted that she was

“aware of significant evidence of multiple house parties in the Washington, D.C. area during the early 1980s during which Brett Kavanaugh, Mark Judge [the Kavanaugh friend who has denied Ford’s charge that he was present during the sexual assault she’s charged the federal judge committed against her as a high school senior] and others would participate in the targeting of women with alcohol/drugs in order to allow a ‘train’ of men to subsequently gang rape them.”

Avenatti also contended that multiple witnesses could corroborate these facts.

Examined closely, however, it’s not clear at all how conclusive her revelations will be, and whether they are even facts. After all, Avenatti isn’t saying that his client saw Kavanaugh and Judge participate in these rape gangs. He isn’t even saying that his client saw any such activity herself. Apparently she’s simply “aware of” some evidence. And aware how? Is there any documentation? Will it really be “significant” – whatever Avenatti thinks that means. At this point, who knows?

Further, although it’s true that many women have attested to the frequency of abusive behavior by Kavanaugh’s peer generation in this particular Washington, D.C.-area prep school scene, that’s not to say that this behavior amounted to gang rapes, or – as I noted last Saturday – that Kavanaugh himself was personally involved in any of it. These rebuttals also need to be kept in mind whenever the “multiple witnesses” testify in support of Avenatti’s client.

Comparable problems – and then some – plague Deborah Ramirez’ allegations of sexually abusive Kavanaugh behavior during their freshman year at Yale, the year after Ford claims the judge assaulted her. These charges appeared in a New Yorker article on Sunday, and Ramirez, like Ford, has put her name behind them. But you can believe (as I do) that it’s as difficult as it is courageous for any victim to make a sex crime accusation public; that because of the cruel reactions often generated by these charges, even victims who go public often understandably do so only after many years; that for similar reasons, victims often don’t confide even in close family or friends; and that memories of even such traumatic events can age badly, and still be legitimately troubled by Ramirez’ story – and The New Yorker‘s decision to publish it and role in developing it.

First, as widely noted, New Yorker reporters Ronan Farrow and Jane Mayer acknowledge that they could not confirm

“with other eyewitnesses that Kavanaugh was present at the party [where the incident allegedly took place]. The magazine contacted several dozen classmates of Ramirez and Kavanaugh regarding the incident. Many did not respond to interview requests; others declined to comment, or said they did not attend or remember the party.”

Two other major news organizations made the same kind of effort – The New York Times and CNN. Both failed. And neither has been accused of shilling for Republicans or for the Trump administration.

As a result, it’s legitimate to wonder why Farrow and Mayer, and their editors, at the least didn’t decide to wrap the article up at that point – excepting some basic background information about the Kavanaugh battle, and the story of how Ramirez’ experience came into the public domain (which might be crucial, as will be explained below). After all, every other piece of evidence they serve up is either hearsay or opinion that rarely even qualifies as plain gossip.

The most convincing support for Ramirez comes from the first Yalie presented by Farrow and Mayer:

?A classmate of Ramirez’s…said that another student told him about the incident either on the night of the party or in the next day or two. The classmate said that he is ‘one-hundred-per-cent sure’ that he was told at the time that Kavanaugh was the student who exposed himself to Ramirez. He independently recalled many of the same details offered by Ramirez….”

The big problem – this person insisted on anonymity.

Not quite as strong, but deserving to be taken seriously: “Ramirez told her mother and sister about an upsetting incident at the time, but did not describe the details to either due to her embarrassment.” So that looks like contemporaneous corroboration. But it’s disturbingly vague.

Falling into the literal hearsay category – the account of another classmate. Richard Oh did agree to be identified. But he simply “recalled overhearing, soon after the party, a female student tearfully recounting to another student an incident at a party involving a gag with a fake penis, followed by a male student exposing himself. Oh is not certain of the identity of the female student.”

Classmate Mark Krasberg told Farrow and Mayer that “Kavanaugh’s college behavior had become a topic of discussion among former Yale students soon after Kavanaugh’s nomination.: In addition, “In one e-mail that Krasberg received in September, the classmate who recalled hearing about the incident with Ramirez alluded to the allegation and wrote that it ‘would qualify as a sexual assault,’ he speculated, ‘if it’s true.’” In other words, he sounded much less sure about the charges’ veracity in the email than he did when speaking with the New Yorker reporters – quite some time later.

And if you closely examine the rest of the Yale student statements presented in the article, you see that whether they’re anonymous or not, they amount to nothing more than general endorsement’s of Ramirez’ (or Kavanaugh’s) candor and/or character, or lack thereof (in Kavanaugh’s case); expressions of confidence that Ramirez would have told them of the incident had it happened; and various descriptions of some of the Yale undergraduate social scene at the time as an alcohol-drenched zoo where women were often “sexually tormented” (according to then-roommate James Roche), and “victimized and taunted” – including by “male students in [Kavanaugh’s] social scene” (the reporters’ words).

Also fishy: How Ramirez decided to tell her story on a for-attribution basis. To begin at the beginning, Ramirez didn’t initiate the process at all. At one point, Farrow and Mayer write:

“As Kavanaugh’s confirmation hearings became a national story, the discussions among Ramirez and Kavanaugh’s classmates took on heightened urgency, eventually spreading to news organizations and to the Senate. Senate aides from Ramirez’s home state of Colorado alerted a lawyer, Stanley Garnett, a former Democratic district attorney in Boulder, who currently represents her. Ramirez ultimately decided to begin telling her story publicly, before others did so for her. ‘I didn’t want any of this,’ she said. ‘But now I have to speak.’”

The role of the classmates is at least an orange flag. Remember: None of them professes to have been present when Ramirez says she was abused. Some of them have been just fine with conveying hearsay and evidence-free speculation to the media. But once the confirmation hearings “became a national story” (not, apparently, once Kavanaugh was first appointed, but possibly once his confirmation looked certain?) they were engaged in urgent discussions among themselves. And then, their discussions “spread” (like an oil slick?) to “news organizations and to the Senate.”

At that point, moreover, the fingerprints of Democratic operatives are everywhere to be seen. As Farrow and Mayer tell readers at the start of their article, “The allegation was conveyed to Democratic senators by a civil-rights lawyer” (presumably Garnett, a prominent Colorado Democrat). The reporters go on to write that Ramirez “was at first hesitant to speak publicly, partly because her memories contained gaps because she had been drinking at the time of the alleged incident.”

To me, as suggested above, that’s perfectly understandable on all counts. As Ramirez has confessed, she was “embarrassed” – even though there is no reason to believe she did anything wrong, unless you count getting sloshed.

But contrary to the Farrow-Mayer description above, Ramirez didn’t simply decide to go public merely because some time had passed (“ultimately”) or even (mainly?) because she knew it would leak and wanted – again, understandably – to prevent her story to be distorted, at least according to her recollections. And she didn’t make the decision autonomously.

Instead, as the reporters themselves say, “The New Yorker contacted Ramirez after learning of her possible involvement” in the incident in question. Can anyone doubt that the aforementioned Democratic Senators gave her name to Farrow, whose dogged reporting was central to unmasking serial predator Harvey Weinstein, the former King of Hollywood (and major funder of Democrats) and Mayer? Not that there’s anything wrong with that. But it was this move, not anything that Ramirez initially said, that guaranteed she would lose her anonymity.

Further, her decision to go public-for-attribution evidently wasn’t made autonomously, either. As Farrow and Mayer put it:

“In her initial conversations with The New Yorker, she was reluctant to characterize Kavanaugh’s role in the alleged incident with certainty. After six days of carefully assessing her memories and consulting with her attorney, Ramirez said that she felt confident enough of her recollections to say that she remembers Kavanaugh had exposed himself at a drunken dormitory party, thrust his penis in her face, and caused her to touch it without her consent as she pushed him away.”

It’s difficult to finish these sentences and avoid the conclusion that Ramirez was prompted – including by a former Democratic public official.

Yet Ramirez may have been more than an entirely moldable piece of clay. In its own aforementioned investigation of the story, The New York Times also reported, “Ms. Ramirez herself contacted former Yale classmates asking if they recalled the incident and told some of them that she could not be certain Mr. Kavanaugh was the one who exposed himself.” So Ramirez’ confidence in her recollections may be anything but confident.

Not that Kavanaugh is home free on the merits (as opposed to the politics) by any means – mainly for two reasons. First, although he has categorically denied all allegations, the judge’s efforts to portray himself as a near choirboy in private school who may have occasionally had a few too many beers don’t square well with some compelling counter-evidence. And it’s not just that the early-1980s social landscape surrounding Kavanaugh’s alma mater and similar Washington, D.C. area institutions of learning sounds like a coed Lord of the Flies-type scene on steroids. It’s that several Kavanaugh peers have depicted him for attribution as a problem drinker in college, and that according to his close high school buddy Mark Judge (the alleged first-hand observer of the attack Ford claims) called their circle of friends “Alcoholics Anonymous.”  

The point is not how much of a boozer Kavanaugh was or wasn’t, particularly since an alcohol problem wouldn’t by itself prove that he committed any sexual assaults or engaged in harassment in high school or in college. It’s that if his credibility is convincingly challenged on this score, his blanket denial of the sex crimes looks a lot dicier.

Second, the charges of Kavanaugh’s first accuser, Christine Blasey Ford, have been called into question because aside from the judge, three of the five total individuals (including herself) that she’s stated attended the party where the alleged attack took place deny any memory of the evening. (One, a close friend, added, however, that she believed Ford.) Nonetheless, Ford is not completely lacking for corroborating witnesses.

As mentioned in my post last Saturday, Ford told a therapist of the incident in 2012. The therapist has no record of Kavanaugh’s name being mentioned. But Ford’s husband says that it was. (They were in couples therapy.) In addition, just this morning, her attorneys submitted to the Senate Judiciary Committee four sworn affidavits supporting her charges. They included one in which her husband restated his claim that Kavanaugh’s name was mentioned at the therapy session, and one in which self-described “close friend” Keith Koegler professed that Ford identified Kavanaugh as her assailant in an email in June, 2016 – right after the judge was listed as a likely Supreme Court nominee.      

As a result, it seems clear that a cloud is going to remain over Kavanaugh’s head no matter what happens at the upcoming hearing – a cloud much like that which the uproar and its fiendish complexity has formed over the nation’s entire politics.